The Hypothetical Separation of Powers in Pakistan

The judicialization of politics and the politicization of judiciary have been on the rise over the past few years. In order to understand the complexity of the above statement, let’s take the example of the human body where each organ has a definitive purpose to perform, like the heart is responsible for pumping blood carried by veins after purification from the kidneys and the brain has to process sensory information. Any interference by one organ into the affairs of the other will ultimately result in a collapse of the whole system.

Similarly, the concept of separation of powers or trias politica adheres to strict checks and balances between the three organs of the state namely the legislature, the executive and the judiciary. In Pakistan, the powers of two out of three organs (except for the judiciary) are derived from Article 7 of the Constitution of Pakistan, whereas the role of the judiciary is mentioned in Part VII of the Constitution (which is to maintain order between all organs). No authority, except where allowed by law, can encroach on the jurisdiction of others. The firmer the trichotomy of powers, the stronger the governance in the state.

Unfortunately, the judiciary has often been seen to step in where the executive has failed to cope with the expectations or aspirations of the people.[1] In Pakistan, the meddling of the court into the work of other organs can be traced back to the Tameezuddin case, the revolution of judicial activism after the lifting of martial law in the 1980s, and the wave of public interest litigation initiated by former Chief Justice Iftikhar Chaudhry through cases involving hajj corruption, inhumane treatment in jails, missing persons and the recent decisions in the Panama Papers and Dam Fund cases.

Under Article 184(3) of the Constitution, the Supreme Court of Pakistan has the authority to exercise suo motu powers to take action on a matter if the issue at hand has two aspects i.e. if it is of public importance and if there has been a violation of fundamental rights as per Chapter 1, Part II of the Constitution. In a recent case[2] relating to the reappointment/extension of tenure of the incumbent Chief of Army Staff (COAS) where the Prime Minister had arbitrarily extended tenure, the Supreme Court exercised its inherent jurisdiction under Article 184(3) but also showed judicial restraint towards interfering in the matters of the executive and held that such powers exclusively vested with the President. It was an example of respecting the trichotomy of powers.

However, the newly appointed Chief Justice of Pakistan (CJP), Justice Gulzar Ahmed, exercising the original jurisdiction of the Supreme Court, took his first suo motu actionon 10th April 2020 in the awake of the recent COVID-19 outbreak. The action was taken in light of the federal government’s incompetence and failure to formulate a proper plan to overcome the pandemic. On the first hearing on Monday, 13th April 2020, the CJP showed reservation towards the appointment of Dr. Zafar Mirza (Special Assistant to Prime Minister on Health Affairs) for being incompetent and ordered his removal from the post, mentioning that he had done nothing in his capacity.

In this chaotic situation, it is pertinent to note that one of the two requirements, i.e. the violation of fundamental rights as set out under article 184(3) for taking suo motu action, has not been met. None of the fundamental rights given in Chapter 1, Part II of the Constitution have been breached here. Instead, the matter falls more under ‘principles of policy’ given in Chapter 2, Part II of the Constitution which are clearly not covered by article 184(3) of the Constitution. While the government, be it federal or provincial, has indeed failed to provide people with the basic necessities of life covered under article 38 of the Constitution, if a case has to be made for breach of any right it would not be for fundamental rights rather for the promotion of social and economic well-being of the people.

While the Supreme Court’s power to exercise original jurisdiction has occasionally been exceeded by judges over the course of time, other organs of the state have also been seen to disrupt the separation of powers. For instance, the armed forces of Pakistan in the past have transgressed executive jurisdiction by issuing a proclamation of emergency and taking extra-constitutional steps to intervene in the affairs of the government. However, in that situation the Supreme Court exercised its power of judicial review[3] and held that neither the Provisional Constitutional Order of 1999 nor any principle of necessity could restrain the power of judicial review vested in the superior courts.

Coming back to the politicization of judiciary owing to the actions of a few who have misused powers granted by the Constitution and intervened in the domain of other organs, it is submitted that it is high time for the executive to take charge in the midst of a pandemic situation. The President could summon an emergency meeting of Parliament under Article 54 of the Constitution or enact an Ordinance to save the government from being judicialized.

Suo moto actions are only taken when no petition is listed for hearing in the Supreme Court and the court is compelled to initiate action on its own. However, it has been claimed by an advocate named Usama Khawar that he did bring forth a constitutional petition pertaining to the same matter of reviewing the COVID-19 situation which had been disregarded and a suo motu action had been taken by the court instead. The entire matter has now raised serious concerns about the validity of the action taken by the Chief Justice.